C Return of dowry after divorce
If a marriage ended by divorce, the wife or her father could bring an action for return of dowry. If the divorce were due to the woman's fault or at her (or her father's) instigation, or there were children, the husband would be entitled to withholdings of part of the dowry, known as retentiones:
style='font-size:10.0pt;font-weight: bold;font-style:italic'>Rules of Ulpian 6.9: Withholdings are made from the dowry [either on account of children] or on account of morals (mores) or on account of expenses or on account of things given or on account of things removed.
10: A withholding is made on account of children if the divorce has been made by the woman's fault, or that of her father if she is in his power. For in that case, a sixth (of the whole dowry) is withheld in the name of each individual child, however, not more than three-sixths (altogether).... 12: Indeed, a sixth is withheld on the grounds of more serious moral defects, however, an eighth for lighter ones. More serious moral defects are only adulterous acts; the rest are lighter.6If the wife's paterfamilias were still alive, the dowry would be returned to him, but only if she was willing:
D.24.3.2 (Ulpian): When the marriage has been dissolved, the dowry is paid to the woman.. This (is the case) if the woman is legally independent. 1: But if she is under paternal power and the dowry came from him, the dowry is his and his daughter’s; and then the father is not able to get back the dowry, either through himself or through a legal agent, except at his daughter’s wish..2: But when the father brings an action concerning the dowry, do we accept “his daughter’s wish” (to mean) that she consents or, on the other hand, that she does not object? And there is a rescript from the emperor Antoninus (Caracalla) that a daughter appears to give her consent to her father, unless she clearly objects..7
Sometimes the dowry might be returned to the wife even when her father was still alive. Even if she were under paternal power and owned no property of her own, she might have contributed the dowry from her peculium, the allowance that Roman fathers gave their children to administer during the father's lifetime:
D.23.3.24 (Pomponius): If a daughter under her father’s power who is about to marry gave a dowry to her husband from the peculium whose management she has, then, when her peculium was in the same position, there was a divorce, the dowry is paid to her correctly, just as (it would be) by any debtor on a peculium.
The peculiar position of dowry is illustrated by the following rescript of Diocletian and Maximian to a father who wanted to repossess money he had given his daughter.
If he had given it as dowry, he could not get it back while the marriage was intact, since it belonged to the husband. If he tried to force his daughter to divorce (see Part I.E), her husband would return the dowry, but it would not go to the father unless his daughter were willing. This presumably acted as a check on fathers breaking up their children’s marriages for mercenary reasons.8 On the other hand, he could take back any money other than dowry (i.e., her peculium, the allowance often given by a paterfamilias to children under his control) that he had given a daughter under his power. This may be one reason why unlike the situation in some other societies, dowry did not make up the major portion of a Roman daughter’s paternal inheritance.Cod. Just. 5.18.7, 9 February, 294
Emperors Diocletian and Maximian and the Caesars to Erotius:
You are not at all prevented from taking away the money of a daughter who is under your power. But if you gave (the money) as dowry on her behalf, you are not able to get it back during the marriage even if she agrees. Moreover, if the marriage has been dissolved, you are not able to get (the dowry) back if she is unwilling. Subscribed at Sirmium9 on the fifth day before the Ides of February in the consulship of the Caesars.